Uhuru Kenyatta will no doubt be declared president-elect by IEBC Chairman Wafula Chebukati.
It is a race he ran alone. The inclusion of Raila Odinga and other candidates on the ballot paper does not sanctify an otherwise unconstitutional, unlawful and sham election. The process’s legitimacy has been tainted by the boycott in opposition strongholds and attempts to project results to support Kenyatta’s August 8.2 million win despite low voter turnout.
The Constitution’s promulgation 10 years ago heralded a new dawn in governance and democracy, with emphasis on sovereignty of the people as the foundation for exercise of power.
A disputed presidential election in 2007 and the violent aftermath propelled the international community to intervene, restore order through a coalition government, initiate criminal proceedings at ICC against perpetrators of electoral violence, pursue truth justice and reconciliation and midwife the birth of a permanent legal framework for free and fair elections of the President.
The preamble to the Constitution recognises “the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy social justice and the rule of law.”
The Constitution sets the basic foundation for a free and fair election as one conducted free from violence, intimidation, improper influence or corruption, by an independent body, transparently and administered in an impartial, neutral, efficient, accurate and accountable manner. Uhuru’s election was invalidated for failure to meet these requirements. The court stated that it would nullify the repeat election if IEBC fails again.
The poll has been conducted with election materials printed by Al Ghuriah, of the ‘dubious’ Forms 34A and 34B. Results were transmitted by OT-Morpho. KIEMS servers were not opened. DCI and EACC have not reported on their investigations against IEBC staff. NASA’s irreducible minimum reform requirements were not met. Nothing changed to guarantee free and fair elections.
Raila’s withdrawal automatically vacated the election. A fresh election, preceded with party nominations in terms of the 2013 Supreme Court decision, was necessary. The High Court’s inclusion of Ekuru Aukot and all candidates who participated in the invalidated poll was based on an erroneous interpretation of the law. The High Court has no power over matters relating to presidential elections.
Personal interests
Ten days to the poll, Commissioner Roselyn Akombe resigned after fleeing to the US. In her words, “we need just a few men and women of integrity to stand and say that we cannot proceed with the election on October 26 as currently planned.” A day later, Chebukati lamented in frustration that “it is difficult to guarantee free and fair and credible election.” He demanded the resignation of implicated commissioners and the secretariat claiming that “I would rather bow out with my name intact and my head lifted high than to be part of a process where personal interests dwarf the interest of the nation.”
In a later address, Chebukati changed tune, accusing Akombe of speaking from the comfort of a “foreigner”. His assurances that the position had changed for the better was unconvincing.
A Supreme Court petition a day to the poll to stop the election was frustrated by lack of quorum. Who occasioned and benefited from the non-coincidental quorum hitch?
Court of Appeal Judges Githinji, Koome and Sichale surfaced late in the night on a ‘public holiday’, to stay a High Court decision made the same day, declaring the appointment of returning officers unconstitutional. In the morning, the Court was on ‘holiday’ and could not hear an appeal by ODM against the inclusion of Aukot on the ballot. Who summoned and directed the three judges to act and decide as they did?
A valid presidential election must be conducted in accordance with the Constitution. No valid election took place on October 26 if the 2013 Supreme Court decision is applied. The election was not conducted in 290 constituencies in any event.
Elections Act Section 55B relied upon to put off elections in opposition strongholds cannot override Article 138 (2) of the Constitution on this issue. Even if Kenyatta receives more than half of votes cast in the election and 25 per cent of votes in half of 47 counties as expected, the poll is still invalid.
The possibility of the Supreme Court being frustrated from hearing another petition confirms that a legal solution to the problem is far from near. Raila’s transformation of NASA to a resistance movement adds to the uncertainty. It remains to be seen whether CJ Maraga will preside over another petition or witness the swearing-in of Kenyatta and how the same will be received by the opposition and the international community.
- The writer is an advocate of the High Court of Kenya. nhavi@haviandcompany.co.ke
